STATE OF NEW JERSEY v. HOWARD JONES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD JONES,

Defendant-Appellant.

_____________________________

December 30, 2013

Argued December 11, 2013 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 09-08-861, 00-08-861 and Accusation No. 03-12-836.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

Teresa A. Blair, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Blair, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. We affirm.

Defendant was tried before a jury on four days in March 2011. The State produced testimony from the victim, Trenton Police Officers Antonio Cruz and Stanley Olschewski, and Leonard Wimbush. Defendant did not testify. We discern the following facts from the evidence adduced at trial.

I.

In March 2009, the fourteen-year-old victim stopped at a store to buy a snack as she walked to school. Before entering the store, she noticed a man, later identified as defendant, who approached her, walked away, and started to follow another girl. The victim observed that the man was wearing a yellow ski mask that concealed his face and a "blue checkered and white jacket and black pants." As the victim exited the store and crossed the street, the man whispered "Pssst," causing her to turn and see his exposed penis; the victim also said the man masturbated in front of her.

As the victim ran towards her nearby school, she noticed Wimbush helping his daughter into his vehicle, and told him a man had just "flashed" her. Wimbush saw the man the victim briefly described to him leap out of some nearby bushes and started chasing him. The victim continued to school and notified a security guard who called the police.

Wimbush chased the man down the street and around the back of an apartment building, where the man "looked [Wimbush] dead in the face for a good three to five seconds" before jumping over a wooden fence. Wimbush testified that the man's face was "scruffled, like he hadn't shaved in a couple days" and he had a "beady little eye look." Wimbush, who was wearing slippers and could not run easily, returned to his apartment, put on sneakers, and waited for the police.

Officer Olschewski arrived at the corner store and obtained a statement from Wimbush; Officer Cruz arrived at the store shortly thereafter. Wimbush told the officers that the suspect was an African American man, approximately in his forties, who was wearing a plaid jacket, ski mask, and dark pants. Cruz searched the immediate area and questioned the victim, while Olschewski and Wimbush searched the neighborhood in a police car.

Olschewski and Wimbush arrived at an abandoned railroad track bed a few blocks from the store and saw someone approximately 100 and 200 yards away wearing a jacket and hood that matched Wimbush's description of the clothing worn by the suspect. The person looked back at them, attempted to duck out sight, left the tracks, and headed in the direction of Oakland Street.

Olschewski drove to Oakland Street, where he and Wimbush exited the vehicle and searched for the suspect on foot. Wimbush saw a man "playing" with a trash can, but assumed he lived nearby and was not the suspect. Olschewski saw defendant come out from behind a house on Oakland Street wearing a gray sweatshirt and carrying a yellow recycling can. Olschewski asked defendant whether he had seen anything suspicious in the area, and defendant replied, "the gentleman who was exposing himself is on the track bed." Olschewski testified that he had not mentioned anything about a man who had exposed himself, and thus took "extreme interest" in defendant. Olschewski asked defendant for his name and address, but instead of providing it, defendant simply pointed to the house. Olschewski told defendant that he would have to get his information because defendant was a witness.

Defendant began walking to the house, then dropped the yellow can and started running away towards the track bed. Olschewski chased defendant, and Wimbush, who was heading back towards Olschewski, saw defendant running and tackled him. Olschewski arrested defendant, informed him of his rights under Miranda,1 and called for backup.

Olschewski's supervisor and another patrol unit arrived at the scene of the arrest. Because defendant was not wearing a jacket or hat that matched Wimbush's description of the clothing the suspect wore, Olschewski searched the surrounding area for the items. Olschewski found a blue-and-white jacket by the recycling can behind the house on Oakland Street. Olschewski then drove defendant to the school to see if the victim could identify him as the man who had earlier exposed himself and masturbated in front of her.

When they arrived at the school, Olschewski removed defendant from the patrol car. The victim testified that she looked from the school's front window and saw defendant, who was wearing a black shirt. She testified that at this point she was unable to identify him. The victim testified that the officers then placed "the jacket" on defendant. After seeing the jacket, the victim told the officers inside the school that defendant was the man who had earlier exposed his penis to her and masturbated in her presence. The officers in the school informed Olschewski that the victim had positively identified defendant.

At trial, Cruz testified that defendant was the man the victim identified at the school. Wimbush testified that defendant was the man he had seen jump out of the bushes. The victim and Wimbush testified that the jacket Olschewski found was the one they had seen on the suspect at the time of the crime.

The judge sentenced defendant to an aggregate term of five years in prison with two years of parole ineligibility for endangering the welfare of a child and criminal sexual contact, consecutive to a five-year aggregate prison term on two violations of probation (VOP). As a result, defendant is serving an aggregate ten-year prison term with two years of parole ineligibility.

II.

On appeal, defendant argues the following points:

POINT I

BY PLACING THE INCRIMINATING JACKET ON DEFENDANT AFTER C.W. FAILED TO IDENTIFY DEFENDANT WITHOUT THE JACKET, THE POLICE VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM SUGGESTIVE POLICE IDENITIFICATION PROCEDURES THAT CREATE A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. Const. Amend. XIV; N.J. Const. Art. I, 1.

POINT II

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE LEWDNESS AS A LESSER-INCLUDED OFFENSE OF BOTH COUNTS ONE AND TWO, ENDANGERING THE WELFARE OF A CHILD AND CRIMINAL SEXUAL CONTACT. U.S. Const. Amend. XIV; N.J. Const. Art. I, 1. (Not Raised Below).

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S. Const. Amend. VIII, XIV; N.J. Const. Art. I, 1, 12.

Under the totality of the circumstances, we reject defendant's contention that the placement of the jacket on him constituted an unreliable identification by the victim.

A pretrial identification is admissible at trial unless the identification procedure was impermissibly suggestive, and the objectionable procedure created a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1998)2 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). As the Court noted, "reliability is the linchpin in determining the admissibility of identification testimony." Ibid. (quoting Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1997)).

If the court determines that the identification procedure was "impermissibly suggestive," then the question is "'whether the impermissibly suggestive procedure was nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 504 (2006)). The circumstances to be considered in this analysis include: (1) the "opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40 (internal quotation marks and citations omitted). These factors are to be weighed against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

Here, the police conducted a one-on-one show-up identification. Such show-up procedures may be admissible because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Herrera, supra, 187 N.J. at 504 (alterations in original). In denying defendant's motion to exclude testimony of the identification,3 the judge stated that

with regards to the motion to strike . . . the victim['s] . . . description of the defendant, at least as she testified to it in court, based on [United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)] and the taint caused when the police had the defendant put on the jacket that had been identified by her at the time she viewed it at the school, I would note that one-on-one show[-]up [identifications] are inherently suggestive.

. . . .

Here, there was a show[-]up [identification] when Officer Olschewski brought the defendant to school where the victim . . . was. She identified the jacket which the defendant was made to wear by the officer, and I have placed on the record her testimony. I'll review it quickly. She said the jacket she observed the jacket the man had on, that was how she was able to make her identification. She remembered the man wearing the jacket. She testified that she did not see his face, nor did she recognize it when first shown. Now, that's how she identified the defendant, as the man in the jacket. She did not identify him in court, as I pointed out. She testified to what occurred on [the date of the incident], that was her basis for identifying the man wearing the jacket.

I find the situation similar to [Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967)] In Stoval[l] the police took the defendant, who was handcuffed, to an officer, into a hospital room where the victim was being treated for stab wounds, and the victim identified the defendant as the person who stabbed her.

. . . .

Here, only [the victim] could identify defendant as having exposed himself to her. I note that the school was nearby where this occurred. And [if] it wasn't the defendant, . . . then the flasher, the person who was exposing himself, was still on the loose and probably nearby.

I find that this is not a due-process violation. The procedure here occurred very soon after the incident. And I note that Mr. Wimbush also testified that he had seen a man with a distinct pattern, a plaid lumber jacket in the bushes. So I find this is not a due-process violation that would result in suppression or striking [the victim's] identification from the trial record or her testimony in that regard.

Assuming that the show-up identification procedure was impermissibly suggestive, the identification of defendant was inherently reliable because (1) the procedure occurred "very soon" after the incident; (2) the victim and Wimbush gave matching descriptions of defendant's clothing before the show-up; (3) without being prompted, defendant told Officer Olschewski that "the gentleman who was exposing himself is on the track bed"; (4) after Olschewski told defendant that he was a witness, defendant dropped the yellow can and started running away towards the track bed; (5) Olschewski searched the surrounding area and found a blue-and-white jacket by the recycling can behind the house on Oakland Street; (6) Cruz testified that defendant was the man the victim identified at the school; (7) Wimbush testified that defendant was the man he had seen jump out of the bushes; and (8) the victim and Wimbush testified that the jacket Olschewski found was the one they had seen on defendant. The judge properly charged the jury on the show-up identification, there was no objection to the charge, and the jury was free to reject the procedure as unreliable after it weighed the pros and cons of the show-up.

III.

We reject defendant's contention that the judge erred by failing to charge lewdness as a lesser-included offense. At the charge conference, the judge raised whether to give the jury this lesser-included offense. Defense counsel stated in part that

all this lewdness does is give [the jury] . . . more to read. . . . It just seems prejudicial.

. . . .

[I]t doesn't seem to come down to whether they believe that an event took place with somebody, as in [the victim] made the whole thing up. It's just a matter of was it [defendant] or was another individual [who committed the offenses].

Defense counsel thus argued strenuously against charging lewdness as a lesser-included offense.

The doctrine of invited error precludes defendant from arguing that the judge erred by not giving the charge. "A defendant cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). The doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applied if the trial court relies on a defendant who is able to convince or mislead the court into taking a position that defendant now urges is error on appeal. Ibid. Because defendant specifically asked the trial court not to charge lewdness, we discern no error in the judge's decision.

IV.

Defendant argues that the judge imposed an excessive sentence. Defendant contends primarily that his sentence is excessive because the judge ran the sentence on the underlying convictions consecutive to a maximum sentence on two VOPs.

Defendant committed these crimes while he was serving probationary terms for two 2004 convictions of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. At his sentencing in 2004, the court placed defendant on probation, determined that aggravating factors three and nine outweighed mitigating factor ten, and warned defendant that he would be facing the maximum prison term if he violated his probationary terms. The convictions in this case constituted two VOPs.

Here, the judge found that aggravating factors N.J.S.A. 2C:44-1a (3), (6), and (9) substantially outweighed the non-existent mitigating factors and imposed an aggregate five-year prison term with two years of parole ineligibility. On defendant's two VOPs, the judge concluded that defendant was no longer a good candidate for probation, followed the court's warning in 2004, and imposed two concurrent five-year prison terms. The judge ran the VOP sentences consecutive to the prison term for the convictions in this case.

There is no reason to second-guess the judge's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). Moreover, in imposing consecutive sentences, the judge followed the guidelines established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 In State v. Henderson, 208 N.J. 208 (2011), the Court revised the guidelines for evaluating out-of-court identification procedures; however, those guidelines do not apply here because defendant was tried before Henderson and the decision is not retroactive. Id. at 302.

3 Defense counsel objected after the State rested.